Attorney-client ruling might decide lawsuit

Columbus school attendance scandal

Columbus City Schools employees -- and perhaps others in schools throughout the state -- are accused of falsifying students' records to improve their schools' standing on state report cards. Read the complete series.

After its in-house attorney told members of the Columbus Board of Education in July that they
couldn’t hold private meetings to discuss an unfolding data-rigging investigation, the board hired
a different attorney who told them they could — as long as he was in the room.

The reason: “attorney-client privilege,” the centuries-old legal concept that allows people to
communicate privately with attorneys on legal matters.

But during a court hearing yesterday in which The Dispatch Printing Company challenged the
legality of seven closed meetings, an attorney argued that the board had inadvertently waived the
right to any privilege. That’s because, in early August, it partially waived privilege on
data-rigging documents before Aug. 3, 2012.

That question ground the case to a halt during the first day of court hearings. Franklin County
Common Pleas Magistrate Tim McCarthy said the case might hinge on whether the district has any
privilege after the partial waiver.

Attorney Marion H. Little Jr. said privilege can’t be waived in time intervals. Little, who
represents
The Dispatch in seeking to have the closed meetings declared illegal, called the district’s
strategy “a charade put together to cloak certain discussions.”

Douglas Cole, representing the school district, argued that the board still has privilege, and
he said he probably would appeal any ruling that it doesn’t.

Confidentiality was required for the sake of good government, so that the board could get legal
advice from attorney Robert “Buzz” Trafford, Cole said. With the FBI now investigating as well, the
legal ramifications for the school board are even larger, Cole said.

Cole suggested that he and school-board members should meet privately with McCarthy so that the
magistrate can hear the privileged information and decide on its merits without making it
public.

However, Cole also argued that the closed gatherings weren’t even
meetings under Ohio’s Open Meetings Act because they were informational in nature. That
would mean they were legal even if the board had no attorney-client privilege.

The evidence will be overwhelming that the gatherings were
meetings, Little said. The board arranged them and stated the purpose; members asked
questions, offered opinions, reviewed draft resolutions, and discussed issues that had been tabled
during open meetings.

Little highlighted a July 30 memo from the school district’s general counsel, Larry Braverman,
to the board that said Ohio law generally declares all meetings to be open to the public. There is
nothing that would allow private discussions of “the attendance issue or the investigation by the
internal auditor itself,” but the board could privately discuss disciplining or evaluating
employees in relation to that issue.

Board Member Hanifah Kambon testified yesterday that there were few limits on what was discussed
in the closed sessions, and “we took advantage of that opportunity, yes.” Her testimony was halted
when McCarthy said the issue of privilege needs to be decided first.

The case is to resume on Monday. Little said he plans to ask for a restraining order to stop the
board from holding further private meetings about the data investigations.